388 F.

2d 393

UNITED STATES of America, Appellee.

v.
Benjamin MESSINA and Jack Alwadish, DefendantsAppellants.
No. 209.
Docket 31255.

United States Court of Appeals Second Circuit.

Argued November 29, 1967.
Decided January 2, 1968.
Certiorari Denied April 22, 1968.

See 88 S.Ct. 1413.

Louis Kaye, Brooklyn (Abraham Glasser, New York City, on the brief),
for appellants.
Samuel J. Heyman, Asst. U. S. Atty. (Jon O. Newman, U. S. Atty. for the
District of Connecticut, on the brief), for appellee.
Before MOORE, SMITH and HAYS, Circuit Judges.
HAYS, Circuit Judge:

Benjamin Messina and Jack Alwadish were convicted after a jury trial on
several counts of transporting and selling stolen motor vehicles in violation of
18 U.S.C. 2312 and 2313, and they appeal. We affirm the judgments of
conviction.

Appellants first challenge the sufficiency of the evidence. The government's

principal witness was Albert E. Farrah, a Connecticut used car dealer who had
previously pleaded guilty to receiving a stolen motor vehicle. He testified that
appellants had sold cars to him at his lot in Connecticut on several occasions.
The prices paid for the cars were low, and payment was always in cash. Each
car was registered to a different owner; none was registered to appellants. The

owners of the cars testified that their cars had been taken from locations in New
Jersey and New York shortly before the dates on which they were sold to
Farrah in Connecticut.
3

The jury had the right to infer from evidence of appellants' possession of the
cars in Connecticut shortly after their theft from another state that appellants
had transported the cars in interstate commerce with knowledge that they were
stolen. See United States v. Weldon, 384 F.2d 772 (2d Cir. 1967); United States
v. DeSisto, 329 F.2d 929, 935 (2d Cir.), cert. denied, 377 U.S. 979, 84 S.Ct.
1885, 12 L.Ed.2d 747 (1964).

Appellants, however, assert that Farrah's testimony should not have been
believed. It is true that Farrah's credibility was open to attack; he had made
several statements to FBI agents before trial which were inconsistent with his
trial testimony, he received a reduction in sentence at about the time he began
cooperating with government investigators, and it is not unlikely that he was an
accomplice in the crimes. On the other hand, his account was plausible and was
in part corroborated by the testimony of other witnesses. Farrah's credibility
was for the jury to assess; that it chose to believe his testimony presents no
ground for appellate reversal.

Appellants urge that the indictment should have been dismissed since it was
based in part upon hearsay evidence.1 Not only did appellants fail to move in
the trial court for a dismissal of the indictment, but the contention itself is
untenable. See Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed.
397 (1956); United States v. Andrews, 381 F.2d 377 (2d Cir. 1967).

Appellants also assert that the trial court erred in admitting the actions and
declarations of each of them against the other since the indictment charged
them with neither conspiracy, aiding and abetting, nor concerted action. This
argument is unavailing.

"There need be no charge of conspiracy to make actions and declarations of

joint actors in furtherance of a common illegal plan admissible against each
actor." United States v. Jones, 374 F.2d 414, 418 (2d Cir. 1967).

Appellants argue that the testimony of one Richard Dart should not have been
admitted into evidence. (Dart stated that he had issued automobile registrations
to Messina without requiring supporting documents in return for small
gratuities.) Appellants did not make proper objection to the admission of this
evidence in the trial court, and therefore the claim has not been preserved for

appeal. United States v. Indiviglio, 352 F.2d 276 (2d Cir. 1965) (en banc), cert.
denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966).
9

Pre-indictment statements by appellants were testified to at trial by a

government agent without objection, probably because they were exculpatory.
Now appellants claim that these statements were inadmissible under Miranda v.
State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). Since
appellants were not "in custody" indeed, the interviews were held on a park
bench and in a Schrafft's restaurant Miranda warnings were not required.
384 U.S. at 477-478, 86 S.Ct. 1602. Moreover, the warnings given were
adequate under Miranda. The agent omitted mention only of the right of
defendants to have appointed counsel if they were indigent. Since appellants
retained counsel at trial and on this appeal, they clearly are not indigent and
therefore need not have been warned of the right to appointed counsel. 384 U.S.
at 473, n. 43, 86 S.Ct. 1602. See United States v. Fisher, 387 F.2d 165 (2d Cir.
December 15, 1967).

10

We have examined the other points raised by appellants and find them to be
without merit.

11

Affirmed.

Notes:
1

The indictment was returned prior to this court's decision in United States v.
Umans, 368 F.2d 725 (2d Cir. 1966), cert. dismissed as improvidently granted,
389 U.S. 80, 88 S.Ct. 253, 19 L.Ed.2d 255 (1967), which suggested that the use
of hearsay testimony before the grand jury be avoided if possible. Counsel for
the government advises us that since theUmans decision it has been the practice
in the District of Connecticut to present to the grand jury only testimony of
witnesses with first-hand knowledge except when such witnesses are
unavailable or cannot be summoned without cauing them extreme
inconvenience.